Racial justice victory dimmed by possible resumption of executions

On May 14, during the same week that North Carolina's death penalty cleared a significant legal hurdle, the state Senate passed a landmark bill that seeks to make capital punishment decisions more equitable. The Racial Justice Act, which passed by a 36-10 margin, would prevent the execution of defendants who can prove race was an underlying factor in the decision to seek or impose the death penalty at the time of their trial.

"Let's not be naïve. [Race] has been a factor at times in the past, and we need to recognize that," Sen. Floyd McKissick Jr., D-Durham, the bill sponsor, said before the vote. "I'd much rather see a person end up in life in prison, without parole, because it may be fair and appropriate for the offense he committed."

A recent study (PDF) conducted by two UNC-Chapel Hill professors found that defendants in North Carolina are twice as likely to be sentenced to death for capital crimes if they are black; defendants whose victims are white are 3.5 times more likely to be sentenced to death than defendants who committed identical crimes against non-white victims, the study found.

The Senate vote is bittersweet for proponents of death-penalty reform, because it includes an amendment (PDF) intended to end the state's de facto moratorium on executions that has been in place for nearly three years. The amendment—introduced by Senate Minority Leader Phil Berger, R-Rockingham, who voted against the bill—would prevent doctors from being disciplined for participating in executions and would exempt the N.C. Council of State from its role in approving execution protocol. That would resolve two issues hung up in the state's courts until recently that have effectively postponed execution of the state's 163 death-row inmates since August 2006.

"What they're trying to do is make this an execution bill, and this is not that," said Rep. Larry Womble, D-Forsyth, a sponsor of the bill on the House side. "This bill is about fairness, and opportunity, for both sides—the prosecutors and also the defendants. It's a fairness bill."

The bill is now awaiting committee assignment by House Speaker Joe Hackney. Most likely, the House Judiciary I Committee—which passed the House version of the bill—will take up the Senate version. In an interview, Judiciary I Committee member Pricey Harrison, D-Guilford, said she would seek to restore the bill to its original version—which carries no language about expediting executions. In 2007, the House passed the Racial Justice Act with no such language, though the Senate refused to vote on it.

Simultaneously, Wake County Superior Court Judge Stephens ruled (PDF) that the N.C. Council of State had properly approved the state's execution protocol, helping to clear the way for executions. That decision—along with a 4-3 ruling by the N.C. Supreme Court that says doctors cannot be disciplined for participating in executions—would appear to make identical language in the Senate bill redundant.

However, the Council of State case may still come up for appeal, meaning Berger's amendment would provide added insurance for resuming the death penalty. Meanwhile, Stephens has scheduled a June 1 hearing to deal with a separate issue: whether the state's particular method of lethal injection violates the U.S. and N.C. constitutions as cruel and unusual punishment.

Stephens' ruling last week overturns an earlier decision, by Office of Administrative Hearings (OAH) Judge Fred Morrison, ordering the Council of State to reconsider its decision to approve the execution protocol—which it did in a single meeting closed to public comment. The Council of State rejected Morrison's order, and Stephens heard the case on appeal.

"This ruling affirms that the Council of State acted appropriately in approving the execution protocol. Gov. Perdue continues to support the death penalty, and will continue to monitor this case until it finishes working its way through the legal process," Chrissy Pearson, the governor's press secretary, wrote in an e-mail.

Essentially, Stephens found the Council of State was not subject to the state's administrative code, because it was merely signing off on a protocol developed by the N.C. Department of Correction—itself not subject to portions of the Administrative Procedures Act. In other words, the development of an execution protocol—the means by which North Carolina kills its death-row inmates—can have no administrative oversight, outside the Council of State, and is not subject to normal administrative procedures, Stephens found.

"There's a division of two judges here," said Mark Kleinschmidt, executive director of Fair Trial Initiative and an attorney representing one of the five death-row inmates involved in the Council of State case. "It's certainly an issue that's worthy of appeal, though we haven't decided our next steps yet."

Depending on Stephens' ruling June 1, executions could resume then. If the Racial Justice Act passes, death-row inmates will have one year to file claims of racial bias—which can include sentencing statistics for the county, prosecutorial district or judicial division where they were tried. If their claims are successful, their sentences will be reduced to life without parole.

"At least they passed a bill," Womble said of the Senate's historic vote. "Although, the bill is not entirely what I'd like to see. We'll see what we're going to do about it."